THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50032/99 by Kęstutis JURŠA against Lithuania

The European Court of Human Rights ( Third Section) , sitting on 16 January 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Mr P. Kūris , Mr K. Jungwiert , Mrs H.S. Greve , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced on 26 May 1999 and registered on 29 July 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant was a Lithuanian national, born in 1962. He died on 2 September 2000. By letter of 18 October 2000 his wife expressed her wish to pursue the case in his stead.  

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant, a businessman and professional athlete, was suspected of belonging to a Kaunas mafia -type organisation. The police applied to a court requesting his “special supervision” ( teismo įpareigojimai ) under the Organised Crime Prevention Act (see the ‘Relevant domestic law’ part below). On 17 February 1999 the Kaunas City District Court placed the applicant under “special supervision” finding, inter alia , that he was reasonably believed to belong to a criminal organisation. The court did not specify the facts warranting that suspicion, referring solely to the “the material presented by the police”. The District Court ordered three preventive measures of “special supervision” for a period of six months, namely a requirement to live at his permanent residence, a prohibition on visiting five specific bars in Kaunas , and a requirement to inform the police about all his financial transactions exceeding 2,000 Lithuanian litai (LTL).

The police authorities lodged an appeal against the order, contending that these measures were insufficient. On 26 February 1999 the Kaunas Regional Court examined the appeal in the presence of the applicant and his defence counsel. The court ordered, for a period of six months, two further preventive measures of “special supervision”, namely a requirement for the applicant to return to his house by 10 p.m. and not to leave it before 6 a.m., and a prohibition on driving a motor vehicle. Again, no particular facts were given in support of the finding that the applicant belonged to a criminal organisation, or that he could be involved in any other wrongdoing, within the meaning of the Organised Crime Prevention Act.

With police permission, in August 1999 the applicant underwent out-patient medical treatment in the resort of Palanga on the Baltic Sea coast. On 2 August 1999 the Palanga City District Court, by reference to the decision of 26 February 1999, ordered the applicant to pay 3,000 LTL as an administrative penalty for failure to comply with the requirement to be at a specific place in Palanga at night-time. Upon the applicant’s appeal, on 5 October 1999 the Klaipėda Regional Administrative Court quashed that decision. The Regional Court found that the curfew obligation of 26 February 1999 concerned the place of the applicant’s permanent residence in Kaunas , and that there was no obligation on him with regard to any place in Palanga . The appellate court ruled that the penalty of 2 August 1999 had been unlawful as the applicant had been permitted to go to Palanga by the police.

The applicant was shot dead in Kaunas on 2 September 2000.

The applicant was married and had three minor children. His wife and children are Latvian nationals, and live in JÅ«rmala in Latvia.

B. Relevant domestic law and practice

Relevant provisions of the Organised Crime Prevention Act 1997 ( Organizuoto nusikalstamumo užkardymo įstatymas ).

Pursuant to Article 1, the purpose of the Act is to apply preventive measures in respect of persons who can adversely affect the rights and freedoms of others, create economic and social conditions for the appearance and development of organised crime, or threaten public safety.

Article 4 permits preventive measures with regard to a person who is reasonably believed capable of involvement in a criminal organisation, aiding or abetting such an organisation by financial and material means or by providing relevant information, or is likely to engage in the future in banditry, blackmail, financial or other serious crime.

Article 3 provides that “special supervision” of the person on the basis of a court order is part of the preventive measures permitted under the Act.

Under Article 13 § 4, a police officer must apply to a court for an order placing a person under “special supervision”. The court decides whether or not to grant the request. Upon the request of the person concerned, the police may permit derogations from the measures so ordered.

Paragraph 5 of Article 13 permits the court not to disclose the facts contained in the material presented by the police in support of their “special supervision” application.

Under Article 13 § 8, the person concerned, his lawyer or the police can appeal against the decision of the court on “special supervision”. Pursuant to paragraph 10 of Article 13, the decision of the higher court is final and not subject to further appeal.

Article 14 lists the preventive measures of “special supervision”, including those applied in the present case.

Failure of the person to comply with a measure of “special supervision” is considered an administrative offence under the general rules of administrative law. An administrative penalty may thus be imposed for such a failure. A dispute as to whether the administrative penalty corresponds to the court decision ordering “special supervision” may be resolved by way of a separate court procedure, in accordance with the rules of the Code of Administrative Procedure pertaining to administrative penalties.

COMPLAINTS

The applicant complained that the preventive measures of “special supervision” in his regard violated his rights under Articles 7 and 8 of the Convention, Article 2 of Protocol No. 4 to the Convention, and Article 5 of Protocol No. 7 to the Convention. The applicant alleged that his “special supervision” under the Organised Crime Prevention Act pursued no legitimate aims, or, even if it did, it was arbitrary and disproportionate.

THE LAW

The applicant complained about his “special supervision” under Articles 7 and 8 of the Convention, Article 2 of Protocol No. 4 and Article 5 of Protocol No. 7, claiming violations of his right to respect for his private and family life, freedom of movement, the principle of the equality of spouses and his right not to be punished under retroactive laws.

By reference to the Cardot v. France judgment of 19 March 1991 (Series A no. 200), the Government state that the Court is precluded by Article 35 § 1 of the Convention from examining the applicant’s complaints because he did not appeal against the first instance decision ordering his “special supervision”, in accordance with Article 13 § 8 of the Organised Crime Prevention Act, thereby failing to exhaust domestic remedies. According to the Government, a separate administrative procedure brought by the applicant to contest the legality of the penalty for his failure to comply with the curfew obligation was not relevant for this purpose as, by way of that procedure, the applicant could not contest the grounds of his “special supervision” under the Organised Crime Prevention Act or the lawfulness of the court orders placing him under “special supervision”.   

The applicant contended that he had exhausted all effective national remedies. In particular, he contested the need for his being placed under “special supervision” at the hearing of the police appeal on 26 February 1999. Furthermore, there was no remedy against the additional preventive measures ordered by the appellate court on 26 February 1999. In addition, no domestic court had given an adequate response to his Convention complaints.

The Court notes first the fact of the applicant’s death and the wish of his widow to continue the Convention proceedings he initiated. The question arises, therefore, whether she has a legitimate interest to pursue the case in his stead (see, inter alia , Jėčius v. Lithuania, no. 34578/97, 31.7.2000, §§ 39-41). However, the Court does not deem it necessary to answer this question because the case must in any event be rejected for the following reasons: 

To the extent that the applicant complains about his “special supervision” under the Organised Crime Prevention Act, the Court recalls that the exhaustion rule under Article 35 § 1 of the Convention requires that the complaints intended to be made before the Court should have been made to the domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law. Furthermore, any procedural means which might prevent a breach of the Convention should have been used (see the Cardot judgment cited above, § 34).

The Court notes that the applicant did not avail himself of the right under Article 13 § 8 of the Organised Crime Prevention Act to appeal against the order by the District Court of 17 February 1999 placing him under “special supervision”, although the police did. The applicant was present at the hearing of that appeal on 26 February 1999 whereby certain additional measures were ordered against him. The appeal decision was final.

The Court is not called upon to speculate as to whether or not the outcome of the appellate hearing would have been different had the applicant submitted his own appeal. The fact remains that, by failing to appeal, the applicant did not use all available procedural means to prevent a breach of the Convention, denied himself the possibility of a more effective defence at the hearing of the police appeal, and thus did not provide the Lithuanian courts with the opportunity, which is in principle intended to be afforded to Contracting States by Article 35 § 1, to prevent or put right the violations alleged against them (see, mutatis mutandis , ibid. , § 36).

The Court concurs with the Government that the separate judicial action whereby the applicant disputed the administrative penalty imposed on him for failure to comply with the curfew obligation was irrelevant for the purposes of Article 35 § 1 of the Convention because, by way of that action, the applicant was only entitled to contest the compatibility of the penalty with the court orders of 17 and 26 February 1999 placing him under “special supervision”. However, this remedy did not provide the applicant with the right to dispute the lawfulness of those orders or the impugned legislation by reference to which they had been made.

It follows that the applicant failed to exhaust domestic remedies in regard to his complaints about his “special supervision” under the Organised Crime Prevention Act, as required by Article 35 § 1 of the Convention.

To the extent that the applicant seems to complain about the administrative penalty itself, the Court notes that it was quashed on appeal as unlawful. There is no evidence that the applicant suffered any significant prejudice as a result of this penalty. Therefore, in this respect the applicant cannot be regarded as having been a victim of a violation of the Convention or its Protocols under Article 34 of the Convention.

It follows that that the application must be rejected under Articles 34 and 35 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President